Cephus v. USA

Filing 32

OPINION AND ORDER denying 29 Motion for Appealability and Reconsideration as to Justin Phillip Cephus : the request for reconsideration is DENIED FOR LACK OF JURISDICTION and the request for appealability, or to file a notice of appeal, is also DENIED. Signed by Judge Rudy Lozano on 4/8/15. cc: Cephus , USCA (mc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
UNITED STATES OF AMERICA,

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Plaintiff/Respondent,
vs.
JUSTIN PHILLIP CEPHUS,
Defendant/Petitioner.

NO. 2:09-cr-43
2:13-cv-396

OPINION AND ORDER
This

matter

is

before

the

Court

on

the

“Motion

for

Appealability and Reconsideration,” filed by Petitioner, Justin
Cephus,

on

March

10,

2015

(DE

#615).

The

request

reconsideration is DENIED FOR LACK OF JURISDICTION.

for

The request

for appealability, or to file a notice of appeal, is also DENIED.

BACKGROUND
On February 4, 2015, this Court entered an opinion and order
denying Cephus’ motion under 18 U.S.C. § 2255, denying several
related motions, denying his request for an evidentiary hearing,
and declining to issue a certificate of appealability.

(DE #608.)

In the current motion “for appealability and reconsideration,”
Cephus briefly rehashes many arguments he made in the voluminous
briefing of his section 2555 and related motions.

DISCUSSION
When a motion is brought requesting reconsideration of a final
judgment, a court must first determine whether it has jurisdiction
to entertain the motion. Under certain circumstances, a motion for
reconsideration motion must be treated as a successive habeas
petition.

See Dunlap v. Litscher, 301 F.3d 873, 875-76 (7th Cir.

2002); Harris v. Cotton, 296 F.3d 578, 579-80 (7th Cir. 2002)
(citations omitted) (“Prisoners are not allowed to avoid the
restrictions that Congress has placed on collateral attacks on
their convictions . . . by styling their collateral attacks as
motions for reconsideration under Rule 60(b).”)

If a motion for

reconsideration is in effect a second or successive petition, a
district court lacks jurisdiction to consider it unless the court
of appeals has granted the petitioner permission to file such a
petition.

See 28 U.S.C. § 2255(h); 28 U.S.C. § 2244; Dunlap, 301

F.3d at 875 (noting that 28 U.S.C. section 2255, paragraph 8, is
“clear and bar[s] a district court from using Rule 60(b) to give a
prisoner broader relief from a judgment rendered by the court in
the prisoner’s [2255] proceeding.”).

The Seventh Circuit has

explained the Supreme Court’s position on such motions as follows:
Gonzalez [v. Crosby, 545 U.S. 524 (2005)]
holds that a motion under Fed.R.Civ.P. 60(b)
must be treated as a collateral attack when
the prisoner makes a ‘claim’ within the scope
of § 2244(b).
This means, the Court
concluded, that a procedural argument (say,
2

one about the statute of limitations) raised
using Rule 60(b) is not a new collateral
attack, but that an objection to the validity
of the criminal conviction or sentence is one
no matter how it is couched or captioned. See
also, e.g., Melton v. United States, 359 F.3d
855 (7th Cir. 2004); United States v. Evans,
224 F.3d 670 (7th Cir. 2000). The reasoning
of Gonzalez does not depend on which rule the
prisoner
invokes;
its
approach
is
as
applicable to post-judgment motions under
Fed.R.Crim.P. 6(e) as it is to motions under
Rule 60(b).
U.S. v. Scott, 414 F.3d 815, 816 (7th Cir. 2005).
In this case, Cephus does not argue that there were any
procedural defects in the proceedings related to the Court’s
decision to deny relief under section 2255. Rather, his motion for
reconsideration simply lists arguments he previously made.

As

such, Cephus’ motion is a successive claim for relief under section
2255, for which he must obtain leave to file from the Seventh
Circuit Court of Appeals.

28 U.S.C. § 2255(h).

This Court lacks

jurisdiction to hear Stewart’s motion for reconsideration, and it
must be DISMISSED.
This

Court

has

appealability.
appealability

already

(DE
may

only

#608,
issue

denied
pp.
if

Cephus

29-30.)
the

a
A

certificate
certificate

petitioner

“has

made

substantial showing of the denial of a constitutional right.”
U.S.C. § 2253(c)(2).

of
of
a
28

Because this motion is an unauthorized

successive collateral attack, this Court cannot treat it as a
notice of appeal, and cannot issue a certificate of appealability.
3

See Sveum v. Smith, 403 F.3d 447 (7th Cir. 2005).

CONCLUSION
For

the

reasons

set

forth

below,

in

the

“Motion

for

Appealability and Reconsideration,” filed by Petitioner, Justin
Cephus (DE #615), the request for reconsideration is DENIED FOR
LACK OF JURISDICTION and the request for appealability, or to file
a notice of appeal, is also DENIED.

DATED:

April 8, 2015

/s/ RUDY LOZANO, Judge
United States District Court

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